November 4, 2013
As everyone knows, the U.S. Supreme Court decided two cases involving same-sex marriage issues in June. U.S. v. Windsor held that the federal ban on same-sex marriage was unconstitutional, but left open the question whether states can continue to individually ban same-sex marriage. Hollingsworth v. Perry could have answered that question, but instead the Court disposed of the case on issues of standing and jurisdiction. As a result, litigation over state laws banning same-sex marriage has been moving forward in numerous states, including key political “swing” states like Pennsylvania, Ohio, and Virginia.
Meanwhile, there are a couple cases currently pending before the Supreme Court of Texas. (Disclosure: I am co-counsel in these cases.) One involves a couple that was married in Massachusetts, then tried a few years later to get a divorce in Dallas—but the State intervened to stop them, saying that the couple couldn’t get a divorce because they weren’t recognized as married in the first place. The district court ruled that Texas laws banning same-sex marriage (and divorce) were unconstitutional, as a violation of due process and equal protection. But the court of appeals reversed, so the couple petitioned the Supreme Court for review. (Read briefs here.)
The other case involves a couple in Austin, who was in a similar situation—only this time the district court granted the divorce before the State intervened. The State intervened on appeal, but the court of appeals disposed of the case on issues of standing and jurisdiction, saying the State had no right to intervene in an uncontested divorce proceeding. So the State petitioned the Supreme Court for review. (Read briefs here.)
In short, the Texas Supreme Court faces the same procedural and constitutional issues that were faced by the U.S. Supreme Court in Perry and Windsor. But these Texas cases come with the added twist that they are actually about divorce, instead of marriage. And whereas the U.S. Supreme Court had the four “liberal” justices and Justice Kennedy, who struck down the federal ban on same-sex marriage, the Texas Supreme Court is comprised of nine Republicans.
Oral argument in these cases is set for tomorrow (Tuesday, November 5th).
FYI: If you’re in the Dallas area, I’ll be giving a recap of the arguments and talking about same-sex marriage litigation in general on Friday, November 8th. If you’re in the Austin area, my co-counsel Jody Scheske will be speaking on Thursday, November 7th. And I’ll be speaking again on Thursday, November 14th, in San Antonio. Contact me for details.